Federal Communications Commission Washington, D.C

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of ) ) Amendment of Section 73 .202{b) ) MB Docket No. 04-319 Table of Allotments, ) RM-I0984 FM Broadcast Stations. ) (Coal Run, Kentucky and Clinchco, Virginia) ) FILED/ACCEPTED

To: Office of the Secretary JUL 18 2011 (Attention: The Commission) Federal Communications Commission Office of the Secretary MOTION FOR STAY

Dickenson County Broadcasting Corp. ("Dickenson"), licensee ofWDIC-FM, Channel

221A, at Clinchco, Virginia, by its attorneys, pursuant to Section 1.102{b){3) and 1.1 I5(h) ofthe

Rules, hereby files this Motion for Stay of the action ofthe Chief, Audio Division taken in the

Memorandum Opinion and Order, DA 11-1072, released June 17,2011 ("MO&O,,).1

In Amendment afSection 1.420(/) ofthe Commission's Rules Concerning Automatic Stays ofCertain Allotment Orders, 11 FCC Red 9501 (1996) ("Stay Order"), the Commission eliminated the previous practice of automatically staying orders in rule making proceedings that were under reconsideration or review. Therefore, Dickenson is filing this Motion for Stay. The action taken in the MO&O is based on erroneous facts and must be reversed. In a separate pleading, Dickenson is today filing an Application for Review ofthe MO&O

1 Under Section 1.4G) of the Rules, Dickenson is timely filing this Application for Review within 30 days of the release of the MO&O on July 18, 2011, since the 30th day following release of the MO&O fell on a Commission holiday. As the MO&O is a document in a notice and comment rulemaking proceeding, it must be published in the Federal Register, and public notice runs from the date of publication. As of July 18,2011, the MO&O had not been published in the Federal Register. Dickenson is filing today in an abundance of caution; however, Dickenson reserves the right to supplement this Application for Review should the MO&O be published in the Federal Register. "< f/Of"d f\.\J ~)!i ; ~ ;,..w-lL.!-l--.

...._--_ ..._..._._--_... _-- I. Background

The MD&D granted a Petition for Reconsideration filed by East Kentucky Broadcasting

Corporation ("East Kentucky"), licensee ofStation WPKE-FM, Coal Run, Kentucky, ofthe Audio

Division's action in Coal Run, Kentucky, and Clinchco, Virginia (Report and Order), 22 FCC

Rcd 5347 (MB 2007) ("R&D"). The 2007 order had denied East Kentucky's Petition for Rille

Making proposing to substitute FM Channel 221C3 for Channel 276A at Coal Run, to modify

Station WPKE-FM's license accordingly, and change the operating channel ofWDIC-FM,

Clinchco, from 221A to 276A to accommodate East Kentucky. Initially, in the R&D [published

April 4, 2007 in the Federal Register as 72 Fed. Reg. 16315] ("R&D"), the Audio Division correctly denied East Kentucky's proposal.

In the MD&D, the Audio Division, inter alia, agreed with East Kentucky that the R&D misapplied Section 73.211 ofthe Rules, reinstated the petition for rule making and reexamined

East Kentucky's proposed upgrade. Dickenson showed that there was significant doubt as to whether East Kentucky's reference site was technically feasible and that a station operating from that site would not place the required "city-grade"signal over Coal Run, as required by Section

73.315 ofthe Commission's Rules. The Audio Division rejected Dickenson's arguments and found that East Kentucky had demonstrated compliance with Section 73.315 ofthe Rules.

Dickenson's Application for Review demonstrates otherwise.

II. Under the Circumstances, a Stay is Warranted

Absent a stay, effective August 1, 2011, the Audio Division intends to involuntarily substitute Channel 276A for Channel 22lA at Clinchco, Virginia, and modify the license of

Station WDIC-FM to reflect the change, but this action should be stayed pending the final outcome ofthis proceeding. There are procedural as well as substantive reasons that merit a

2 stay.

MO&O Not Yet Published in the Federal Register. Initially, a stay must be imposed because the rule changes cannot go into effect until the MO&O is published in the Federal Register, which has not yet occurred, despite the best efforts of counsel and his paralegal to discover whether publication has taken place. This proceeding is a rule making proceeding, despite the changes in 2006 to the way in which the Commission processes applications seeking involuntary channel changes. It started out that way in 2004 and must be terminated in the same manner; i.e., by publication in the Federal Register. Title 5 U.S.C. Section 533(d) (the Administrative

Procedure Act or APAi requires that a substantive rule be published not less than 30 days before its effective date, except "as otherwise provided by the agency for good cause found and published with the rule." There is nothing in the MO&O that discusses the Federal Register, much less provides good cause for dispensing with publication.3 Whereas, the R&O was published in the Federal Register, it terminated the proceeding without making a change in the

FM Table of Allotments.4 The current MO&O is a document in a notice and comment rule making proceeding, which is a matter of general applicability and, under Section 1A(b)(1) ofthe

2 Section 553 (d) of the APA provides: The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule."

3 The only reference to the Federal Register in the MO&O is found in footnote 19 where Dickenson's argument was trivialized that it had been prejudiced by East Kentucky's proceeding under Section 1.106 rather than 1.429, thus forcing Dickenson to respond more quickly to East Kentucky's petition than would otherwise be required.

4 Because East Kentucky started its attempt to change the channel ofWPKE-FM and WDIC-FM by rule making, rather than by application, and the MO&O is a document in MB Docket No. 04-319 (see caption), it does not appear that the new procedures adopted in Revision ofProcedures Governing Amendments to FM Table ofAllotments and Changes ofCommunity ofLicense in the Radio Broadcast Services, 21 FCC Rcd 14212 (2006) apply so as to avoid publication in the Federal Register. In that Report and Order, the Commission announced that the FM Table of Allotments, Section 73.202 ofthe Rules, would "henceforth contain only vacant allotments, and that authorized full power non-reserved band FM facilities already occupying allotments shall be listed only in the Media Bureau's Consolidated Data Base System ("CDBS")."

3 Rules, the applicable public notice date would be 30 days after publication in the Federal

(2010), citing, Prineville and Sisters, Oregon, 8 FCC Rcd 4471 (MMB 1993). Thus, until the

MO&O is published in the Federal Register, it can have no effect. The importance of proper

notice was recently emphasized in Prometheus Radio Project v. FCC (U. S. Ct. App. 3rd Cir.)

Case No. 08-3078, et al (2011 U.S. App. LEXIS 13855), July 7, 2011 (Order vacated and

remanded for failure to comply with the AP's notice and comment requirements).

Substantive Reasons to Stay the Effective Date

Great Harm to Dickenson Will Result Absent a Stay. In the Application for Review,

Dickenson respectfully urges the full Commission to review this matter and to reverse the Audio

Division's action in the MO&D. Meanwhile, the action of the Audio Division should be stayed.

Implementing the channel change will do great harm to Dickenson, and it should not be required

to change the operating channel ofWDIC-FM until this matter has been finally adjudicated.

Now that Dickenson has sought review of the involuntary allotment change, it should remain

protected from having to cause disruption to its operations and to the residents of Clinchco who

depend on WDIC-FM for news, weather, and entertainment by changing its operating channel

until there is greater certainty, as detemlined by the action on review, that to do so would serve

the public interest.

While the Stay Order. supra, eliminated the automatic stay provisions of the rules, it did

not eliminate the possibility of the grant of a stay in appropriate situations:

Further, in order to minimize the risk of imposing significant costs on licensees or permittees required to change channels as a result ofan allotment change, we will make every effort to reach and promptly decide any petition for reconsideration filed against the underlying allotment action by such a party. Where it is not possible to do so, we retain the authority, as the commenters have noted, to impose a stay in individual cases and we will be particularly cognizant of requests for stay filed by any party whose authorization would be changed involuntarily [emphasis added.]

4 Of course, that is the situation faced by Dickenson. It has been fighting this involuntary channel change since 2004 when East Kentucky's Petition for Rule Making ripened into a Notice ofProposed Rule Making and Order to Show Cause.s

Why doesn't Dickenson just "play ball" and go along with East Kentucky's demands?

Because the people of the WDIC-FM service area have come to rely for 20 years (since 1991) on finding WDIC-FM at 92.1 MHz (Channel 221A) on the FM dial. In 1991, WDIC-FM's channel was involuntarily changed from Channel 226A (93.1 MHz) to its current Channel 221A at the behest of who? East Kentucky, who wanted to upgrade its co-owned WDHR, Pikeville,

Kentucky. See Pikeville, Kentucky, Clinchco, Virginia and Matewan, West Virginia, 6 FCC Rcd

3732 (1991). Now, Dickenson finds itself once more being forced to take action that will confuse

WDIC-FM's audience in order to satisfy the business whim of East Kentucky, a company that has plans to upgrade yet another one of its six radio stations in the Pikeville, Kentucky, radio market.6 In contrast to East Kentucky, Dickenson owns only WDIC-FM and its AM-daytime sister WDIC, both licensed to Clinchco.

Dickenson realizes that moving parties have a "high burden to meet in order to demonstrate that a stay of a Commission action is warranted. Specifically, the Commission will grant a motion for stay only if the moving party can demonstrate that: (1) there is a substantial likelihood that it will succeed on the merits; (2) it will suffer irreparable injury ifthe stay is not granted; (3) the injury which the party suffers will outweigh the harm to the adverse party; and

(4) the stay will be in the public interest. See Washington Metropolitan Area Transit Commission

5 Coal Run, Kentucky, and Clinchco, Virginia, 19 FCC Rcd 15395 (MB 2004)("Notice ")

6 East Kentucky has six radio stations in the Pikeville radio market. In addition to WPKE-FM and WDHR, East Kentucky is licensee of WPKE (AM ), Pikeville; WEKB, Elkhorn City, WLSI(AM), Pikeville; and WZLK(FM), Virgie, Kentucky. Co-owned East Kentucky Radio Network, Inc., is licensee ofWPRT(AM), Prestonsburg, Kentucky, and WBTH(AM), and WXCC(FM), Williamston, West Virginia. (continued....) 5 I.

v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977), and Virginia Petroleum Jobbers

Association v. F.P.c., 259 F.2d 921 (D.C. Cir. 1958).,,7

Dickenson meets all those tests:

(1) There is a substantial likelihood that Dickenson will succeed on the merits. As

demonstrated in its concurrently filed Application for Review, the Audio Division has made a

serious error in determining that the community of Coal Run will be served by a city grade (70

dBI!) signal. The comprehensive Engineering Analysis Exhibit supporting the Application for

Review shows that the Audio Division erred in making this finding, and there is a substantial

likelihood that Dickenson will be proven correct should the Audio Division delve deeper into the

matters raised.

(2) Dickenson will suffer irreparable injury if the stay is not granted. Attached

hereto is a Declaration of Richard W. Edwards, president of Dickenson. Mr. Edwards explains

that WDIC-FM began operating in 1989 on Channel 226A (93.1 MHz). In 1991, WDIC-FM was

forced to change operating channels from 226A to 221 A (92.1) to accommodate a station owned

by East Kentucky. Even though WDIC-FM operated on Channel 226 for only approximately two

years, Mr. Edwards states that the change was very confusing to WDIC-FM listeners. He was

told that people who were accustomed to hearing WDIC-FM at 93.1 on the dial couldn't find the

station and assumed it went off the air. WDIC-FM wasn't listed in rating service data because of

the change in channels. WDIC-FM lost advertising revenue as a result.

Mr. Edwards states "If we are forced to again relocate WDIC-FM from its home of 20

years at 92.1 up the dial to 103.1, I believe it will be devastating to us. WDIC-FM and its AM

sister, WDIC, are the only stations licensed to any community in Dickenson County. This is an

(...continued from previous page)

7 Stay Order, supra.

6 I.

economically depressed area in the coal mining region of far western Virginia. Our operating

margins are slim. Our listeners find us because we promote WDIC-FM as "WDIC-My FM

92.1." We heavily promote our dial position. Most people, I believe, identify the station by the

channel or frequency rather than the call letters. I believe the change in channels could result in

our losing so much revenue that we may not be able to continue to operate. Therefore,

Dickenson County Broadcasting Corp. would suffer irreparable harm if WDIC-FM were forced

to begin operating on 103.1."

Mr. Edwards explains, that as the only FM radio station licensed to Clinchco or any other

community in Dickenson County, people depend on the station for their source of news, weather,

information and entertainment. The station raises money for the local hospital, for Ronald

McDonald House, the local Kiwanis Clubs, the town of Clintwood, and other organizations. He

states his belief that, if one morning they awoke and found no radio station at 92.1 on the dial,

they might reasonably conclude that there was no longer a radio station in Clinchco to which

they could tum for news, weather and entertainment.

Mr. Edwards also states his concerned about my employees, who are over 60 years of

age. He concludes his declaration, "Making a change ofthis magnitude would, I believe, be

extremely difficult for them to adjust to. They might not be able, or willing, to continue to work

at the station. If I lose my staff, I might not be able to continue to operate the stations and

Dickenson County might lose any local radio service. I hope and pray that will not happen.

Keeping WDIC-FM on 92.1 MHz will go a long way to avoiding such a disastrous result."

Dickenson has met its burden ofdemonstrating that irreparable harm would result from a

rush to judgment and that the Audio Division's action should be stayed.

(3) The great injury Dickenson would suffer outweighs the negligible harm to East

Kentucky. East Kentucky simply wants to increase the power ofWPKE-FM by changing

7 channels of one of the six stations in its Pikeville cluster. East Kentucky is prohibited from constructing the WPKE-FM Class C3 facilities until it obtains a construction permit, for which it has not applied. Since it cannot expend money on construction, it will, in no way, be harmed by a stay. On the contrary, Dickenson will be irreparably harmed unless a stay is granted.

(4) The stay will be in the public interest. As shown by the Declaration ofMr.

Edwards, he is the Clerk of the Dickenson Circuit Court of the 29th Judicial Circuit of Virginia.

This is an elective office. He states that, as a result of his political campaigning and his work as

Clerk, he comes into contact with citizens of Dickenson County on a daily basis. He states his belief that the residents of Clinchco, and the surrounding county would be confused if WDIC

FM were required to change the dial position ofWDIC-FM from 92.1 to 103.1.

It would clearly be in the public interest to impose a stay until the issues set out in the

Application for Review have been finally adjudicated.

In the Stay Order, the Commission stated that upon release of an initial staff decision granting their request, parties could proceed to implement the change through applications and construction notwithstanding the pendency of appeals; however, the Commission emphasized that "parties electing to proceed before the allotment decision is final do so at their own risk and must bear the costs of any subsequent action reversing or revising the allotment decision." It would be imprudent for East Kentucky and Dickenson to proceed with implementation of the channel changes if, ultimately on appeal, East Kentucky were forced to return to the status quo.

Then, the public would be doubly confused by WDIC-FM moving from 92.1 to 103.1 and back again to 92.1, and WPKE-FM moving from 103.1 to 92.1 and back again. The most prudent course of action is for the Commission to impose a stay and expedite consideration ofthe

Application for Review so that the uncertainties concerning the final operating channels of both stations can be resolved promptly.

8 WHEREFORE, in light ofthe foregoing, Dickenson requests the Commission to STAY the action taken by the Audio Division in the MO&O, until final action is had on Dickenson's

Application for Review requesting the Commission to dismiss East Kentucky's Petition and terminate this proceeding without modifying Dickenson's license for WDIC-FM.

Respectfully submitted,

DICKENSON COUNTY BROADCASTING CORP.

By: _ Gary S. Smithwick Its Attorney Smithwick & Belendiuk, P.C. 5028 Wisconsin Avenue, NW Suite 301 Washington, DC 20016

202-363-4560

July 18,2011

9 ATTACHMENT

SUPPORTING DECLARATION OF RICHARD W. EDWARDS

10 ATTACHMENT

SUPPORTING DECLARATION OF RICHARD W. EDWA:RDS

Richard W. Edwards, under penalty ofperjury, decl;U'es as follows:

I am th,t5 president ofDio'kenson County Broadcasting Corp., licensee of'WDIC-FM,

Clinchco, Virginia. This Declaration is filed in support ofan Motion for Stay ofthe FCC's action changing the operating channel ofWDIC-FM from 221A to 276A. WD1C-FM began operating in 1989 on Clwme1226A (93.1 MHz). In 1991, WDIC-FM was f.;: reed to Changl;l operilting ohannels from 226A to 221 A (92.1) to accommodate a station ownec; by East Kentucky Broadcasting Corporation. Bven though WDIC...FM operated on

Channel 226 for only approxima.tely two years, the change was very confusing to our listeners. I was told that peopll;! who were accustomed to hearing WDIC..FM at 93.1 on the dial couldn't find the station and assumed it went offthe air. WDIC-FM wasn't Us~d in rating servioe data becaus:e ofthe change ill channels. We lost advertising revenue as a result

Ifw~ ate forced to again relocate WDIC-FM from its home of20 Yeal'S at 92.1 up the dial to 103 1, r believe it will be devastating to us. WDIC"FM ana its AM sister, WDIC, are the only stations licensed to any community in Dickenson County. This is an eoonomically depressed area in the COIl mining region offar westem Virginia. Our operating margins are slim. Our

Ustcue;;s f'tnd us because we promote WDIC-FM as "WDIC-My F'M-92.1." We. hl::Bvily prolll0te our die! position. Most people, I believo, identify the station 'by the oh8lU1el or fRquency rather than the call letters, I believe the change in ohannels could result in ow' losing so much reventre thAt we: may not be able to oontinue to operate. Therefore, Dickenson County B~adcasting

Corp. would suffe~ ineparablc hano if WDIC ..FM were £breed to begin operating on 103.1.

In addition to my position with WDIC-FM, I am the elected. Clerk ofthlll Diokenson

1 Circ\J it Co-urt ofthe 29'11 Judicial Circuit ofVirginia. As a result of my political caatpaigning and my \\ 'Ork as Clerk, I corne into contact with citizens ofDickenso11 County on udaily basis. I belie11'tl that the ftlsiden'ts ofClinchco, and the sU1Toundir1g county would be confused ifwe were requi::cd to change the dial position. ofWD1C~FM ftoI1l92.1 to 103.1.

As the only FM radio station licensed to Clinchco or any other comm.um't), in Dickenson

County, people depend on the station for their source of news, weather, information and enter1ainment. We raise money for the local hospital, for Ronald McDonald House, the local

Kiwanis Chibs 1 the town ofClintwood. and other organizations. I believe, ifone morning they awoke and found no ra.dio station at 92.1 on the dial, they might reasonably conclude that there was DO longer a radio station in Clinchco to which they could nan for news, weatlwr and

.ntertaimnent.

I am also concerned about r1lyempl()yee~ who an-. over 60 years of a.ge. Making a chang e ofthis magnitude would, I believe, be extremely difficult for them to adjust to. They might not be able, or willing, to oontinue to work at the station. IfI lose my stiff, I might not be tl.ble to) continue to operate the stations and Dickenson County might loats any local radio s4Drvice.

I hO~l and pray thEl.t will not happen. Keeping WOIe-FM on 92.1 MHz will go a long way to avoid!ng such 8 disastrous result.

Exeouted thls 1Slb day ofJuly, 2011.

2 CERTIFICATE OF SERVICE

I, Sherry Schunemann certify that on July 18, 2011, copies of the foregoing Motion for Stay were sent via first class mail, postage pre-paid, to the following:

*Peter Doyle, Esq. Audio Division Media Bureau Federal Communications Commission The Portals II 445 Twelfth Street, SW Washington, DC 20554

Peter Gutmann, Esq. John F. Garziglia, Esq. Womble Carlyle Sandridge & Rice, PLLC 1401 Eye Street, NW, Suite 700 Washington, DC 20005 (Counsel for East Kentucky)

* By hand